6 Forced labour
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | (a) Draft Council Decision authorising Member States to ratify the Protocol of 2014 to the Forced Labour Convention 1930 of the International Labour Organisation with regard to matters related to social policy (b) Draft Council Decision authorising Member States to ratify the Protocol of 2014 to the Forced Labour Convention 1930 of the International Labour Organisation with regard to matters related to judicial cooperation in criminal matters
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| Legal base | (a) Articles 153(1)(a) and (b) and 218(6)(a)(v) TFEU; QMV; EP consent; (b) Articles 82(2) and 218(6)(a)(v) TFEU; QMV; EP consent
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| Department | Home Office
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| Document numbers | (a) (36329), 13158/14, COM(14) 563; (b) (36328), 13157/14, COM(14) 559
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Summary and Committee's conclusions
6.1 The purpose of these draft Decisions is to authorise Member
States to ratify a new Protocol to the Forced Labour Convention.
The aim of the Convention is to "suppress the use of forced
or compulsory labour in all its forms within the shortest possible
period".[27] It
was agreed by the General Conference of the International Labour
Organisation (ILO) in 1930 and has been ratified by all Member
States. The Protocol, agreed in June 2014, contains additional
measures for the prevention and elimination of the use of forced
labour and the protection of victims.
6.2 Membership of the ILO is only open to States.
The EU participates as an observer, without voting rights. The
Commission considers that the EU has exclusive competence in the
areas covered by the Protocol and that, as a consequence, EU authorisation
is necessary to enable Member States to ratify the Protocol. It
has proposed two draft Decisions, the first — document (a)
— concerning the working environment and working conditions,
and the second — document (b) — concerning judicial
cooperation in criminal matters, in particular human trafficking
and the rights of victims of crime.[28]
Document (b) includes a Title V (justice and home affairs) legal
base. The Commission considers that the UK is automatically bound,
by virtue of its participation in EU Directives on human trafficking
and the rights of victims of crime, and that the UK's opt-in does
not apply.
6.3 The Government rejects the Commission's analysis.
It contends that the EU does not have exclusive competence for
any matters covered by the Protocol and, as a consequence, lacks
the power to authorise Member States to ratify it. The Government
also contends that, if the draft Decisions are to proceed, document
(b) is subject to the UK's Title V opt-in.
6.4 In our Thirteenth Report, agreed on 15 October
2014, we asked the Government to explain why it had previously
accepted that the EU had competence to authorise Member States
to ratify parts of other ILO Conventions, including a Convention
concerning decent work for domestic workers, but appeared to be
taking a different approach in this case. We also asked the Government
to confirm that it did not intend to opt into the draft Decision,
given its view that the EU lacked the competence to act.
6.5 We invited the Government to consider the implications
of a recent Court of Justice ruling in Case C-399/12 which,
we suggested, might affect the choice of the procedural legal
base cited for the draft Decisions (Article 218(6)(a)(v)). We
also asked the Government to indicate whether and, if so, when
it proposed to ratify the Protocol.
6.6 The Government's original Explanatory Memorandum
on the draft Decisions was signed by the then Minister for Crime
Prevention (Norman Baker). The Minister for Modern Slavery and
Organised Crime (Karen Bradley), who has overall responsibility
for forced labour, provides the Government's response to our questions.
6.7 We note the Minister's view that the practical
effect of the draft Decisions would be to compel Member States
to ratify the Protocol to the Forced Labour Convention since a
failure to do so would be considered by the Commission to be a
breach of EU law. We see the force in her argument. As our earlier
Report made clear, however, it contradicts the view expressed
by the Government in relation to a similar draft Decision authorising
Member States to ratify the ILO Convention on decent work for
domestic workers. On that occasion, the Government told us that
"the only effect of the proposal is to allow Member States,
should they so wish, to ratify ILO Convention 189"
(our italics). The Government did appear to draw a distinction
between authorisation and compulsion. We do not consider that
the Minister has provided a convincing explanation of the Government's
reasons for treating two similar situations differently.
6.8 We do not agree with the Minister's conclusion
that it is not possible to object to the procedural legal base
chosen in this case — Article 218(6)(a)(v). In our view,
she relies too heavily on Opinion 1/13, issued by the Grand Chamber
of the Court of Justice on 14 October 2014, which is primarily
concerned with competence rather than legal base. The Court's
reasoning does not remove the uncertainty as to the appropriate
legal base for the draft Decisions to which we pointed in our
previous Report, based on a clear inference to be drawn from Case
C-399/12, also decided by the Grand Chamber only seven days
before its judgment in Opinion 1/13. We ask the Minister whether
her assessment of the case law is based principally on the concern
that one consequence of the removal of Article 218 TFEU as a legal
base for the draft Decisions would be to give the European Parliament
the co-decision powers for international agreements which it currently
lacks.[29]
6.9 There are other elements in Opinion 1/13 which
we consider may be unhelpful to the Government's position on external
competence. For example, paragraphs 85 and 86 of the Opinion note
the overlap and close connection between the international agreement
in question and EU internal legislation. In determining whether
the agreement may affect common rules or alter their scope, the
Court states that "EU rules may be affected by international
commitments even if there is no possible contradiction between
those commitments and the EU rules". The nature and extent
of EU competence must be determined in the basis of a "comprehensive
and detailed analysis of the relationship between the envisaged
international agreement and the EU law in force".[30]
We ask the Minister whether she considers that Opinion 1/13 is
likely to reinforce the Commission's position that the EU has
exclusive competence, even though the relevant internal EU rules
in this case are based on minimum standards, as is the Protocol.
6.10 Given the imminence of the Employment, Social
Policy, Health and Consumer Affairs (EPSCO) Council, on 1 December,
at which the Presidency intends to put the draft Council Decisions
forward for adoption, it is disappointing that the Government
is unable to provide any meaningful indication of its opt-in decision
or its voting intentions. We note that the Minister is not yet
clear whether the UK will be able to muster a blocking minority
at the EPSCO Council and has not requested a scrutiny waiver.
In light of the current uncertainty, we would be very reluctant
to grant one. If the Council does proceed to adopt the draft Decisions,
we ask the Government to confirm that it will press for the inclusion
of a recital to document (b) to reflect that the UK's opt-in applies.
Meanwhile, the draft Decisions remain under scrutiny.
Full details of
the documents: (a)
Draft Council Decision authorising Member States to ratify, in
the interest of the European Union, the Protocol of 2014 to the
Forced Labour Convention, 1930, of the International Labour Organisation
with regard to matters related to social policy: (36329), 13158/14,
COM(14) 563; (b) Draft Council Decision authorising Member States
to ratify, in the interest of the European Union, the Protocol
of 2014 to the Forced Labour Convention, 1930, of the International
Labour Organisation with regard to matters related to judicial
cooperation in criminal matters: (36328), 13157/14, COM(14) 559.
Background
6.11 Under the EU Treaties, the EU has exclusive
competence to conclude international agreements (including Protocols
to treaties or conventions) if their conclusion may "affect
common rules or alter their scope".[31]
Article 218 of the Treaty on the Functioning of the European Union
(TFEU) sets out the procedures for negotiating and concluding
agreements between the EU and a third country or international
organisation.
6.12 In its explanatory memorandum accompanying the
draft Decisions, the Commission notes that the Protocol establishes
minimum standards which are compatible with the EU's existing
acquis on working conditions, human trafficking, and the
protection of victims, which is also based on minimum requirements.
Both draft Council Decisions are intended to remove "any
legal impediments at EU level to ratification of the Protocol
by EU Member States" in areas falling within EU competence.[32]
The Commission suggests that authorisation is required because
the Protocol addresses areas of EU law "that are already
subject to an advanced degree of regulation"[33]
and in which Member States "are no longer able to act as
sovereign in dealing with external parties".[34]
These include:
· various
Directives establishing minimum rules on working conditions;[35]
and
· two
Directives establishing minimum standards concerning trafficking
in human beings and the rights of victims of crime — the
UK has opted into both Directives.[36]
6.13 In its legal analysis of the draft Decisions,
the Commission says that Member States are not able to decide
unilaterally to ratify the Protocol with regard to those elements
falling within EU competence. The Commission highlights five earlier
Council Decisions, adopted between 2005 and 2014, authorising
Member States to ratify five ILO Conventions which contained elements
falling within EU competence. It considers that the principle
of "sincere cooperation", enshrined in Article 4(3)
of the Treaty on European Union (TEU), precludes Member States
from entering into legal commitments at an international level
concerning areas of EU competence unless authorised to do so by
means of a Council Decision.
6.14 There is a considerable body of case law on
EU external competence and the circumstances in which the EU has
exclusive competence to act, either by itself or through the agency
of the Member States. In Case C-399/12 concerning the International
Organisation of Vine and Wine, the Court of Justice appeared to
suggest that the procedural rules for negotiating and concluding
international agreements contained in Article 218(1)-(8) TFEU
only apply to agreements negotiated and concluded by the EU itself.
As the EU cannot become a party to the Forced Labour Convention
or to the new Protocol, we asked the Government whether the citation
of Article 218(6)(a)(v) TFEU as the procedural legal base for
the draft Decisions could be sustained in light of the Court's
ruling.
The Minister's letter of 13 November 2014
6.15 In our earlier Report, we noted that the draft
Decisions would authorise, not compel, Member States to ratify
those parts of the Protocol falling within EU competence. We suggested
that if the Council were to proceed with the draft Decisions,
it should make clear that they only cover areas of exclusive EU
competence. In her response, the Minister (Karen Bradley) reiterates
the Government's view that EU authorisation is neither appropriate
nor necessary as there is no exclusive EU competence to act. She
continues:
"In our view, little turns on whether the
Member States are authorised to ratify the Protocol, or
whether they are compelled to do so. It is clear that the
Commission considers the EU to have exclusive external competence
for the ratification of the Protocol. If a Member State purported
not to ratify the Protocol, we consider that the Commission would
regard that Member State as in breach of EU law. Accordingly,
it is accurate to speak of the Decisions purporting to compel
Member States to ratify the Protocol."
6.16 We suggested that the stance taken by the Government
in this case was at odds with its support for earlier Council
Decisions authorising Member States to ratify parts of other ILO
Conventions, such as the Convention concerning decent work for
domestic workers. The Minister disagrees, noting that the Council
has on previous occasions rebuffed Commission attempts to bind
by Member States to positions to be taken within the ILO. She
explains:
"The Government's focus is the proposed
exercise of Union competence, and the nature of such competence,
if exercised, on this occasion. The Commission has conceded
in clear terms that there can be no impact upon the EU acquis
by the adoption of the Protocol, as the Committee has noted. Under
the circumstances, the issue of exclusive external competence
should not arise. The Government cannot acquiesce in the assumed
exercise of exclusive external competence in the face of such
a clear concession by the Commission that the criteria for such
competence to exist are not met."
6.17 Turning to the implications of the Court's ruling
in Case C-399/12, the Minister agrees that paragraphs 53
and 54 of the judgment may be read as suggesting that Articles
218(1)-(8) TFEU cannot be used in cases where the EU is not a
party to the international agreement in question, but adds:
"However, those comments of the Court were
made primarily in the context of dismissing arguments advanced
by Germany about the non-applicability of Article 218(9) to an
international agreement to which the EU is not a party, rather
than defining the scope of the remaining provisions in Article
218.
"It is also necessary to view the comments
in Case C-399/12 in the light of Opinion 1/13, which
was handed down on 14 October 2014. The Commission sought the
opinion of the Court on the nature of the competence of the EU
in relation to the acceptance of the accession of a non-Union
country to the Hague Convention. The EU is not a party to the
Hague Convention. The request followed the Council's decision
not to adopt eight Decisions enabling the Member States to deposit
declarations of acceptance in relation to eight third States.
When determining admissibility, the Court considered the applicability
of Article 218 as a whole to agreements to which the EU was not
a party. It considered the Article 218(11) opinion procedure to
apply to any agreement to which the remainder of Article 218 applied.
It noted that where the EU is not a party to the relevant agreement,
it must exercise its competence through the intermediary of the
Member States (paragraph 44). At paragraph 50, the Court held
that the draft Decisions in question (which had been proposed
pursuant to Article 218; see for example, COM(2011) 909 final,
in relation to Seychelles) were sufficient to fall within the
provisions of an "agreement envisaged" for the purposes
of Article 218. We do not, therefore, consider that it is possible
to object to this choice of procedural legal base in this instance."
6.18 Our earlier Report noted the Government's view
that it was already under an obligation to ratify the Protocol
by virtue of its membership of the ILO. We asked the Government
to clarify the nature of the obligation and to indicate whether
and when it would ratify the Protocol. The Minister explains:
"Once the Convention has been communicated
to all Members for ratification, each Member State is required
to bring it before the authority or authorities within whose competence
the matter lies, for the enactment of legislation or other action.
This must be done within one year from the closing of the session
of the Conference. Members shall then inform the Director-General
of the International Labour Office of the measures taken to bring
the Convention before the competent authority or authorities,
and of the action taken by them.
"The UK
Government does intend to ratify the 2014
Protocol to the Forced Labour Convention and will do so within
the required timeframe."
6.19 The Minister is unable to confirm that the Government
does not intend to opt into the second draft Decision —
document (b) — but says she will communicate its decision
to the Committee "in due course". She continues:
"The Council's Social Questions Working
Group considered this dossier on 31 October. Despite several Member
States raising concerns with the legal base for the proposal and
the competence for the EU to act, the Presidency noted its intention
to put the dossier to COREPER in November and to the Employment,
Social Policy, Health and Consumer Affairs Council on 1 December
for adoption. We have engaged closely with other Member States
but it is not yet clear whether there is enough support for a
Blocking Minority under QMV rules. The Government will therefore
consider its opt-in position and voting position ahead of the
December Council."
Previous Committee Reports
Thirteenth Report HC 219-xiii (2014-15), chapter
24 (15 October 2014). Our Second Report HC 219-ii (2014-15), chapter
18 (11 June 2014) and Fiftieth Report HC 83-xlv (2013-14), chapter
9 (14 May 2014) are also relevant.
27 Article 1 of the Convention. Back
28
Two Council Decisions are needed because all Member States are
bound by the EU's social policy acquis and are therefore
entitled to vote for the first Council Decision, document (a).
By contrast, a different decision making procedure, excluding
Denmark, applies to the second draft Decision, document (b), as
it is a Title V (justice and home affairs) measure. Back
29
The substantive legal base - Article 153 for document (a) and
Article 82 for document (b) - would apply. Both are subject to
co-decision. Back
30
Para 74 of Opinion 1/13. Back
31
See Article 3(2) of the Treaty on the Functioning of the European
Union. Back
32
See p.2 of the Commission's explanatory memorandum accompanying
each draft Decision. Back
33
See p.3 of the Commission's explanatory memorandum accompanying
each draft Decision. Back
34
See p.5 of the Commission's explanatory memorandum accompanying
each draft Decision. Back
35
The Directives are listed in a footnote to the second recital
of the first draft Decision, document (a). Back
36
The Directives are listed in a footnote to the second recital
of the second draft Decision, document (b). Back
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